Another look at Hard 50 on tap for Kansas legislators

TOPEKA – Having already changed the Hard 50 prison sentence for certain premeditated murders, Kansas legislators expect to revisit the law to remove any chance that violent offenders return to the general public.

The change is being pursued in a bill by Senate Majority Leader Terry Bruce, who put colleagues on notice during September’s special session that he wanted to modify the sentence for premeditated first-degree murder as a mandatory 50 years in prison.

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Bruce, R-Hutchinson and a former assistant prosecutor in Reno County, said the burden would shift to defense attorneys to convince a judge why a lesser sentence was merited.

“It leaves our sentencing structure for first-degree murder in a more secure legal position than allowing the U.S. Supreme Court to determine what should be determined by a jury,” Bruce said. “It’s more secure, it gives more closure to the victims.”

Kansas legislators were forced to revise the Hard 50 law that had been on the books since 1994 when the U.S. Supreme Court ruled in June that in such sentences, only juries – not judges, as Kansas allowed – can impose the mandatory minimum. Jurors also must weigh both factors supporting the Hard 50 and those supporting a sentence of life with a mandatory 25 years before parole eligibility.

The justices didn’t specifically rule on the Kansas law, but Attorney General Derek Schmidt said the court’s opinion had the effect of finding the Kansas sentencing law unconstitutional. He asked Gov. Sam Brownback to call legislators into session to fix the law with the goal of preserving the Hard 50 as a sentence for 45 cases that were either on appeal or still at the district court level.

The Kansas Supreme Court has heard four appeals of Hard 50 cases since the September special session, considering, among other issues, whether the changes made by the state can be applied to those cases on appeal or whether they violate the constitution’s ex post facto clause. If the court rules it cannot be applied, it is possible that the defendant’s sentences will be reduced to a mandatory 25 years in prison before parole eligibility.

Sen. David Haley, D-Kansas City and ranking minority member of the Senate Judiciary Committee, calls Bruce’s proposal “novel” and worth considering but cautions how it may be applied.

“I would hate for any sentence to find its way into an income disparity issue and question of adequate legal counsel,” Haley said. “I would hate to see long-term prison sentences only going to those who can’t afford a legal dream team that can argue for lesser time.”

Senate Judiciary Committee Chairman Jeff King, R-Independence, said he expects not only a discussion of proposals for strengthening the Hard 50 law but also a debate about the death penalty.

“The special session highlighted that we needed to revisit our murdering statutes and our murder sentencing,” King said during an interview. King said he also expects an effort to repeal the 1994 death penalty law.

Related to serving time, the issue of expanding the state’s maximum security prison in El Dorado is likely to come up in the 2014 session. Recent sentencing projections estimate Kansas will top 10,000 inmates for the first time in 2019, and much of the increase is attributed to nearly 100 sentence enhancements enacted since 2005.

The Department of Corrections is expected to ask legislators to approve $24.3 million to add 512 beds at the El Dorado prison, along with $8.3 million in annual operating costs. The first beds could open in 2017 and the remaining space 18 months later.

King said the state doesn’t want to be in a situation where overcrowding at its prisons leads to federal court oversight and forced release of inmates, something that happened in the late 1980s.

“We have to do long-term planning to make sure that we have the bed space we need to keep Kansans safe,” King said.

House Speaker Ray Merrick, R-Stilwell, said he didn’t think legislators would reopen the 2015 state budget to add money for new prison space but expected the project to be discussed in committee.

Haley said he opposed expanding the state’s prison capacity and would rather look for alternatives to relieve crowding, especially for nonviolent offenders.

“Time has shown that if we build them, we will fill them. I don’t mind the contemplation of putting away society’s most heinous offenders,” Haley said. “But I have a problem with nonviolent offenders crowding our bed space and creating a need for more space.”

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